Health and Social Care Bill

Lord Mawhinney Excerpts

Wednesday 9th November 2011 Lords Chamber

[Lord Warner]

My Lords, in the absence of the noble Lord, Lord Patel, I should like to speak to Amendment 37 as my name has been added to it.

Before getting down to the precise wording of the amendment, I want to give some context to my remarks by talking about what I regard as the total incoherence of Clause 4. I note from the letter of 7 November from the noble Earl, Lord Howe, to my noble friend Lady Thornton that the Government now seem to want to treat Clause 4 in the same way as Clause 1. I have to say that that is hardly a ringing endorsement of the drafting of Clause 4. I wonder, privately, how many other clauses we will have this problem with as we progress through the Bill. In effect, the Government are seeking to take these clauses out of the normal consideration of a Bill in Committee. We are getting into rather strange territory where, as we wander through the Bill, we find that, when the Government find themselves under pressure with regard to bits of the Bill, they sweep those bits aside to have another go in some procedure, which is less than clear to the House, and promise to come back later. Before I go any further on the amendment, as I am already unclear as to how the Government are going to handle Clause 1—and, it now seems, Clause 4—procedurally, I would welcome any light that the Minister can shed on how we are going to deal with these clauses and have a proper discussion of them in Committee.

I turn now to Amendment 37. I am completely supportive of reducing or even stopping ministerial and Department of Health micromanagement of the NHS.

[Lord Mawhinney]

I am extremely grateful to the noble Lord. Is he aware that the concern which he has just expressed is held by other noble Lords as well?

[Lord Warner]

I am grateful to the noble Lord for that intervention. The more the merrier, I say, on this theme and I hope that noble Lords will speak out about this issue in our debate today.

As I was saying, I am completely supportive of reducing or stopping ministerial and Department of Health micromanagement of the NHS, which, as I understand it, is the Government’s purpose in framing Clause 4. However, I struggle with reconciling the clause in its present form with the other duties and powers that the Secretary of State has taken unto himself in the Bill. I do not mean just the relationship between Clauses 1 and 4, which itself seems to have produced a hefty dose of confusion and uncertainty, not to mention, in the case of Clause 1, many attempts at drafting alternatives. How will Clause 4, for example, fit with Clause 3, which most of us in the previous session in Committee—except, perhaps the Minister—seemed to favour strengthening in terms of the duty on inequalities? How will it fit with Clauses 16 and 17, with their very extensive regulation-making powers for the Secretary of State, or indeed Clause 18 or Clause 20, which gives the Secretary of State extensive mandating powers, which seem to me to be rather stronger than the new chairman of the NHS Commissioning Board seems to think?

Many people who have looked at the Bill do not understand what the Secretary of State is trying to do in relation to the issue of central control, central powers and autonomy and delegation. Is he trying to let go or to tighten his grip? I do not see, at present, how the Government can retain in the Bill a clause as loosely drafted as Clause 4 and, at the same time, retain all the other powers of the Secretary of State that we will be discussing later. Apart from anything else, this is a recipe for confusion in the minds of many local decision-makers.

Are people to take Clause 4 as drafted at face value? If they do, will they not be wondering whether the Secretary of State or his henchmen and henchwomen in the Department of Health or the NHS Commissioning Board will come down on them like a ton of bricks using other powers in the Bill if they think that they are not acting in the interests of the NHS? What will the courts make of all this? If people do not like a decision taken higher up the line, as the Royal Brompton and Harefield NHS Foundation Trust is demonstrating now over paediatric surgery changes, do they seek judicial review of the central decisions, praying in aid Clause 4 as drafted? Will not Clause 4 in its present form simply encourage legal challenge and create local uncertainty?

I turn to the wording of the clause and why Amendment 37 is at least an improvement. It is an attempt to improve what is a highly defective clause. As I read Clause 4, it seems to place little inhibition on local decision-makers,

“exercising functions … or providing services”,

in any manner that they consider appropriate. If that means what it says in the dictionary, if people want, for example, to provide a wide range of alternative therapies for which there is no scientific evidence of clinical benefit, they can do so, praying in aid the powers under Clause 4. If they want to remove tattoos or do a bit of cosmetic surgery, I cannot see that there is very much to stop them. Under the clause as drafted, the Secretary of State can intervene only after the event. If he finds out what has been going on, he can, in effect, try to stop it happening again, but that is ex post facto. He cannot intervene earlier, as I understand the drafting of the clause. I am happy to be corrected by the noble Earl, but I am not the only one who thinks that these powers will have that effect.

Amendment 37 is an attempt to require those behaving autonomously locally to apply the test that their actions are in the interests of the NHS before they take their decisions rather than relying on the Secretary of State deciding that they were not in the interests of the NHS after the event. I see that my colleague, the noble Lord, Lord Patel, is now with us. I suspect that we both agree that it is a far from perfect solution, but it is better than the way that the clause is currently drafted. I know that some noble Lords are very attached to the clause—like me, they are attached to the idea of autonomy—but I hope that they will consider whether in its present form it is really in the best interests of the NHS. I suggest that the Government rethink the form of Clause 4 if they want to proceed with it. As I see it, what would get nearer to their intentions but not create some of the loopholes that I have identified is a kind of drafting that gives a commitment that the Secretary of State would not exceed the powers provided elsewhere in the Bill, would impose only burdens that are totally consistent with those powers and would maximise operational freedoms for those delivering NHS services consistent with public accountability. That seems to me to be the direction in which the Government are trying to go, but the way the clause is drafted does not do that.

I would prefer the Minister to accept that the clause is seriously deficient and either abandon it altogether or take it away for a serious makeover. In the mean time, on behalf of the noble Lord, Lord Patel, and myself, I move Amendment 37, which goes a modest way to improve the shape and drafting of the clause. I beg to move.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, as my noble friend the Minister points out, the autonomy clauses are to form part of the Government’s discussions with other noble Lords about the Secretary of State’s duties. These clauses are of considerable significance. In my judgment, Clause 4, relating to the Secretary of State’s duty, and the new Section 13F, relating to the Commissioning Board, threaten the Secretary of State’s primary duty to secure provision of services, however that is ultimately worded after discussions are concluded.

In principle, promoting autonomy is to be welcomed; so is avoiding micromanagement within the NHS, as my noble friend Lady Cumberlege so eloquently pointed out in her speech. One of the best features of this Bill is that it establishes a well-defined decentralised structure in which decisions about arranging and commissioning services are made at a local level in accordance with local needs and conditions. However, as the Government have recognised, it is also essential that final responsibility, both for the quality of the health service and for the very large sums of taxpayers' money spent in providing it, should rest with the Secretary of State, and that he or she should be accountable not only to Parliament for the exercise of that responsibility but answerable in the courts for failure to exercise it in accordance with the law.

I will say a few words now about how the difficulty arises in drafting provisions that strike the right balance between decentralisation and the Secretary of State’s ultimate responsibility. As we all know, under Section 1(2) of the National Health Act 2006, the Secretary of State had a primary duty to,

“provide or secure the provision of services”.

That was underpinned by a direct duty under Section 3 to provide a list of specific services such as hospital accommodation. That duty was in turn supplemented and buttressed by powers under Sections 7 and 8 to delegate and give directions to other NHS bodies. So there was under the 2006 legislation a simple linear structure down from the Secretary of State. Under the Bill, the position is more complex, because under Clause 10 the Section 3 duty to provide the specific services is devolved to the clinical commissioning groups, and the general powers to delegate and give directions are removed. That is why it is challenging to provide for an overarching duty on the Secretary of State to secure the provision of services under Clause 1, and to provide for the exercise of all his other functions to that end. It is that challenge that is principally to be the subject of discussions.

If the Secretary of State is bound by a duty to promote autonomy, as proposed in Clause 4, the force of his duty to secure provision of services is weakened, because his failure to intervene in any given case would be very difficult to challenge on judicial review, except in an extreme case. Generally, the Secretary of State could respond to any challenge regarding a failure to act on his part by claiming in his defence that he was declining to act pursuant to his duty to promote autonomy. It does not help that the Secretary of State would only be bound to promote autonomy,

“so far as is consistent with the interests of the health service”,

in the context of any such challenge. That is because the arbiter of what those interests were would be the Secretary of State himself. A court would not substitute its own view of the interests of the health service for his unless it was satisfied that his view was irrational; and that is too high a bar. It follows, in my view, that there is an inconsistency between the proposed duties to promote autonomy and fulfilment of the Secretary of State's overall responsibility, however it is to be expressed.

The problem with proposed new Section 13F is that it is proposed that the board, with regard to its autonomy provision, be similarly bound to promote the autonomy of the commissioning bodies and others. So the board can argue that it should decline to intervene with the commissioning bodies in accordance with its duty to promote autonomy. That could be relevant if the board were challenged by judicial review on its failure to exercise its intervention powers or, alternatively, relevant if the Secretary of State wished to exercise his powers in respect of the board on the board's failure to intervene where the Secretary of State thought that the board ought to intervene. Thus, while it is desirable— and I entirely agree that it is—for the chain of responsibility to allow plenty of slack as a general rule, when the chain needs to be tightened in the event of failure or threatened failure, the danger is that the chain will be found to be weak in two important links.

I look forward to the discussions to be held with my noble friend the Minister and pay tribute to his and his department’s willingness to hold those discussions on a cross-party basis. I hope that we will see some way as to how this conundrum may be resolved, to retain a strong legal chain of responsibility without encouraging or permitting micromanagement of the bodies in the NHS, to which powers are rightly to be devolved. If we find a solution, that in itself will do a great deal to assist in the confidence that my noble friend Lady Cumberlege rightly points out is lacking among the public and the NHS in the political process.

I add only this. In my view, these two clauses could simply be deleted without doing any violence to the purposes of the Bill. That is because the principles of decentralisation and autonomy and the avoidance of micromanagement are defined and limited by the Secretary of State’s powers woven into the very structure of the Bill and into the way in which the bodies relate to each other under the provisions of the Bill. I suggest that these clauses merely serve to muddy the waters.

[Lord Mawhinney]

I noticed that the noble Lord, Lord Davies of Stamford, pointed to me when he talked about making a theological point about a besetting sin. Because I was going to compliment him and say how pleased I was that he did so, I will happily share that endorsement with the right reverend Prelate.

The noble Lord also made an extremely important point, and around that point I want to speak for a few minutes, with the House’s indulgence. His second point was right; the problem with the health service is bureaucracy—it is not anti-liberation or shackles, but systems and procedures and a pressure coming from all sides that nobody should rock the boat. I listened to my noble friend Lady Cumberlege, and I shall come back in more detail in a moment on what she said, but I suspect that I cannot be the only one in this House to think that, for every case where outsiders did not like some political intervention, outsiders, including patients, did not like the lack of intervention from inside the health service.

On the whole, my experience of over 30 years at both ends of this Corridor has not been that patients come to me and say that the problem with the health service is the politicians. They more frequently say that the problem with the health service is the management or, as we discussed the other day, the doctors who will not admit when they have got something wrong, or the nurses who simply do not provide even the most basic care for the elderly in today’s health service. So the noble Lord, Lord Davies of Stamford, did us a favour when he pointed out that bureaucratic point.

I remain extremely grateful to the Minister for the willingness that he expressed the other day to take away Clauses 1 and 4. Those in the House for that debate will know that it was a widely held view across all the Chamber—and the Minister not only agreed to do it but did it with a tone and spirit that was widely admired. I thank the noble Baroness, Lady Williams, for her contribution in support of that. I would not want anything that I or others say to make my noble friend feel as though the House was reneging on the request made to him to take Clauses 1 and 4 away, which he showed a willingness to do. My contribution to this particular debate is to suggest a few of the things that he might like to think about when he does so which may need to be clarified, resolved or excised, so that when we get back to this on Report he will have a much smoother run—one which I and I suspect other noble Lords hope that he will be able to enjoy.

When the noble Lord, Lord Warner, made his comments, I intervened to say that he is not the only one in the House who thought what he thought. I was referring to a very pertinent phrase which he used. He said that he was not clear whether the purpose of Clause 4 was for the Secretary of State to be engaging or disengaging. I think that is part of the problem of the drafting of this clause. Those of us with some knowledge of the health service are still unclear whether this is meant to help the Secretary of State engage or disengage.

That takes me to my noble friend Lady Cumberlege. She and I served happily together in the department. We conspired for the common good on many an occasion, both in public and over a cup of coffee in our offices. She knows it to be true that there are few people in the health service who I hold in higher regard for a lifetime of work. But I am going to add a “but”. On this occasion, while I admired the tenacious adherence to what she read as the spirit of this clause, most of the rest of what she said left me wondering exactly where she was trying to go. Nobody is claiming that democracy is a clean and simple process. It can be messy. Part of my noble friend’s argument was that Ministers were not to be trusted and that it would be much better to hand it over to the professionals. I respect my noble friend for that view but I do not think it carries a lot of weight. I, too, read the NHS Confederation’s paper. In fact, I have it with me. Every time I read what it said on Clause 4, I thought to myself, “There is just the chance, Brian, that you are giving these people more credit than they deserve”. Perhaps this is a politically incorrect thing to say, but I was reminded just a smidgen of Mandy Rice–Davies in the sense of, “Well, they would say that, wouldn’t they?”.

The problem with this debate is that you have the masses of the health service with their procedures and bureaucracy intermingled with outstanding professionals who, I know from my experience, feel as frustrated with their colleagues as sometimes Ministers feel with the bureaucrats. On the other hand, you have this messy democratic process that occasionally shifts Ministers. Listening to my noble friend, you would be amazed by the claim that the NHS is the envy of the world. I think it is only the envy of the world in certain aspects and that there are other aspects where the world thinks it can do a better job than the NHS. The health service is right up there competitively but given the history of the past 40 years, in which Ministers have played a leading role, it is hard to envisage the outcome that my noble friend talked about. Therefore, I have to say to her that I had a real problem with what she was trying to convey to the Committee. If you do not have democracy, you do not have any public accountability.

[Baroness Cumberlege]

Does my noble friend agree, however, that when I was putting forward the case, I said that we would not negate democracy but that this was a method whereby we could give the Secretary of State more discretion when he wished to interfere—or, rather, not to interfere but to let local people run the service? As a manager, I know that if you are going to achieve things you have to win the hearts as well as the minds of the people who are running the service. I sense that my noble friend is trying to ensure that I will be isolated in these arguments. When I proposed this, I said to your Lordships that I knew that the line I was taking would be unpopular in the Palace of Westminster. Of course it is, because the House is full of politicians. However, I would like to explain to my noble friend that it is not just my view.

Kevin Barron, the Labour MP for Rother Valley, who is a previous chairman of the Health Select Committee, told his colleagues—this was at the Labour Party conference, which understandably I was not at but I read the report—that he recalled looking at statistics for the east of England, some years ago, which were worse than for the rest of the country. The region had retained more local units, which corresponded with marginal constituencies and he said that it was his belief that health experts’ advice, rather than party politics, should determine how and where facilities were provided.

In addition, Paul Corrigan, adviser to No. 10 when Tony Blair was Prime Minister, said that “the public want accountability”—we agree with that—“but are not very keen on the fact that the responsibility lies with elected politicians, who they do not altogether trust”. I serve on a lot of committees, have been on a lot of platforms and have talked to a lot of people over the years in the National Health Service. The question that is often put to me is, “Can you not depoliticise the NHS?”, because it is seen as a very real problem. I accept that we cannot, with this democratic process that we are in, but, as I was saying, there is a balance to be struck. At the moment, unless we have something similar to Clause 4, I cannot see that balance being achieved.

[Lord Mawhinney]

I am grateful to my noble friend. The answer to her question is no. No, I was not trying to isolate or misrepresent her and no, you cannot run a publicly accountable health service without politicians—and without politicians being in charge. In her first speech, my noble friend prayed in aid the tendency of politicians to micromanage. There is one noble Lord in this House—who I will not name, for reasons that will become obvious very soon—who came to me when I was party chairman. He wanted to micromanage politically the hospital in his constituency. He was shown the door pretty quickly by me, precisely because that is not the sort of micromanagement that even politicians want to buy into, much less the medical profession, the nursing profession and all those who work in the health service. That is not micromanagement; that is pure political interference for self-interest.

I am not at all clear what micromanagement really is. Occasionally, as my noble friend pointed out, decisions are so difficult and tricky that they take quite a lot of time. I invite her to cast her mind back to those heady days when we shared Richmond House.

[Baroness Cumberlege]

That sounds very suggestive, my Lords.

[The Lord Bishop of Chester]

My Lords, perhaps the noble Lord, Lord Davies, was right to refer to besetting sins behind me.

[Lord Mawhinney]

Moving on, I remind my noble friend of the times we sat with a cup of coffee and a private secretary or two—just to make her feel better—and we wrestled over some fairly difficult and complex issues. Either she or I would say, “We need a bit more information about that”, the civil servant would say, “Yes, Minister”, and in due course, when diaries permitted, we would sit down again with a bit more information. That can be said to be good ministerial governance—or it could be said to be politically motivated delay when others in the health service knew better, and if only we had got out of the way they would have done what they wanted, but they would do what those in power at the time happened to want, ignoring the contrary views of those who did not happen to hold the management positions at that moment.

I want my noble friend to accept that I still hold her in as high regard as I did before this debate started, but we part company fairly fundamentally on the issue of the accountability on a spend of £128 billion a year. As I said in an earlier debate—I have expressed this privately to the Minister, and my noble friend had the grace to say that he understood—my difficulty is that if you are spending £128 billion of public money, the public whose money are spending are simply not going to say when big problems arise, “Well, that’s okay, we’ll listen to him or her because he or she is chairman of a quango”—even a quango as highly thought of as my noble friend no doubt hopes the national Commissioning Board will be.

There is no debate in this House about the fact that the Secretary of State must be held accountable by Parliament. My noble friend Lord Marks of Henley-on-Thames made the point, which has to be right, that the Secretary of State must also be held accountable by the courts. However, the Secretary of State also needs to be held accountable by the public and the patients, who have not had a huge showing in our debates thus far. I have concerns about this clause because I am not at all clear how the Secretary of State is going to satisfy X billion people by putting in £128 billion that he is accountable to them for if they are absolutely determined that they want him to be accountable to them.

To help the Minister when he takes this clause away and thinks about it, I say to the noble Lord, Lord Warner, that I was not convinced by the amendment. I am happy that he has made that part of his contribution to the review that my noble friend will conduct, but I hope that he does not press it to a vote because I for one would not be able to support it.

There are parts of the clause that the Minister really needs to look at, such as the phrasing in new Section 1C(a):

“any … person exercising functions … or providing services … is free to exercise those functions or provide those services in the manner that it considers most appropriate”.

From that, I am not clear—I do not necessarily want the Minister to tell me this today, but I ask him to think about this—at what point these actions start to become health service policy in their own right. We quote precedent in here. If someone takes an action because they think it is right in the circumstances, does that become a policy or a guideline? Where does the Secretary of State play any role in developing a policy for the NHS?

New Section 1C(b) goes on to say,

“unnecessary burdens are not imposed”.

I have to say to my noble friend that I do not understand what that means. Who decides whether it is a burden? Who decides whether the burden is unnecessary, and where can you challenge the decision whether a burden is a burden and when it becomes unnecessary? It is okay if you consider your action to be the most appropriate in the circumstances. My party occasionally gets criticised for being inclined to being a bit too individualistic, but you cannot run a health service in which everybody can make the decision that they think is most appropriate in the circumstances without a well defined political framework within which they would be expected to act.

I will tell my noble friend something that I have said to him in private but do not mind sharing in public. I spent 26 years at the other end of the Corridor. In all that time I never once voted against my party. Some in this House will see that as wimpish and craven, and some will see it as a fine expression of loyalty. Frankly, I do not mind how you see it. It is how I see it that is important to me.

I have not done a Committee stage of a Bill since I left the Cabinet in 1997, so I want Members of your Lordships’ House to understand that I am not having much fun in these Committee sittings. This is not something that comes naturally to me, and I have tried to reassure my noble friend that my participation in these debates is because of my commitment to the health service and my desire that it should be as excellent as possible. This is for the sake of my former constituents, who are patients. In that spirit, I hope my noble friend will take away Clauses 1 and 4 and think about them again.

[Lord Warner]

My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.